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NURSING HOME WINS VERDICT IN NEGLIGENCE CASE By Ertel Berry

A Franklin County jury has held in favor of a Louisburg nursing home on claims the facility failed to prevent and treat an 81-year-old resident’s pressure sores.

The sores, called Stage IV decubitus ulcers, became infected and the man later died. The decedent’s estate filed a wrongful death suit against the nursing home, Britthaven of Louisburg.

The plaintiff’s experts said the decedent hadn’t received proper treatment, but defense experts disagreed, testifying the nursing home staff exceeded the standard of care. The defense said the decedent’s dementia, vascular disease and related complications led to his death — not the quality of his medical and nursing care.

When jurors deadlocked after two days of deliberations, the parties agreed to accept a verdict by majority vote. The result, handed down on April 29, was an 11-1 verdict for the nursing home.

The case is William Thomas Alston, Personal Representative of the Estate of Edward Braddock Alston v. Britthaven, Inc. d/b/a Britthaven of Louisburg (Franklin County Superior Court; 01 CvS 724).

Raleigh attorney Michael C. Hurley, a lawyer for the defendant, said taking a less-than-unanimous verdict was a gamble.

“They felt they had a majority and we thought we had one,” he said. “They said why not accept a majority verdict with a high-low agreement, and I said why not just accept a majority vote, period.

“I felt that if I hadn’t persuaded a majority of the jury in the first trial, I didn’t want to try it again,” Hurley said.

According to Hurley, one of the issues in Alston was the nursing home’s failure to document all the decedent’s care. Gaps in the charts concerned routine procedures like wound treatment, repositioning and turning over residents, and range-of-motion exercises, he said — all alleged factors in developing decubitus ulcers.

“A common feature in these cases is that because residents are going to be in these facilities for a long period of time, charting is not as extensive as it is at Wake Med, where everything is charted all the time,” said Hurley. “In long-term care facilities, charting is usually just for exceptional or unusual things. Routine care is usually not charted at all or is done so very summarily.”

The jurors in Alston apparently weren’t persuaded that if care wasn’t reflected in the charts, it didn’t happen, Hurley said.

“I think they believed the nurses who testified that, yes, they would have liked to chart all those things but, for whatever reason, they didn’t always write down the routine care that was provided,” he said.

Jury Psychology

Hurley said the last North Carolina verdict in favor of a nursing home he knew of occurred in 1986.

A search of the Lawyers Weekly database shows only a few nursing home jury verdicts, as opposed to settlements. All those verdicts went for the plaintiffs.

“The reality is it’s a tough market,” said Hurley. “According to a Harvard School of Public Health study, in 85 percent of cases nationwide, the nursing home loses. That figure is just the opposite for straight medical malpractice cases. In 80 percent of those, the doctor wins.”

Psychological, economic and social factors all play a role in that trend, and had to be addressed in Alston, according to Hurley.

Poor media image. “You’re up against a huge public image problem with nursing homes,” Hurley said. “In media coverage of nursing homes you rarely see a story about how great the care is.”

A lot of lawyers were “skittish” about defending nursing home cases “because the public perception is so horrible,” according to Hurley.

“I do a lot of straight medmal work,” he said. “In those cases, most everyone wants to believe your guy was a good doctor. People still hold physicians up on a pedestal. ‘Watch out if he violates the standard of care, but give him the benefit of the doubt.’

“It’s a completely different mindset when you’re representing big old faceless ‘Nursing Home, Inc.’ with so much negative media attention and the feeling that these people are profiting off the elderly,” Hurley said.

Hurley’s approach was to address the jurors’ negative feelings head-on, he said.

“One of the things I asked every juror was whether they thought liberty and justice meant that the largest and most powerful member of society should get the same treatment as the weakest,” he said. “If not, that’s a prejudice you need to root out. And I came back to that point during closing. It sort of turns the tables on the ‘big corporation’ argument.”

Outcomes usually poor. “Another problem is that, unlike doctors and hospitals, nursing homes rarely if ever cure anybody,” said Hurley. “If you go to an OB/GYN, in nine months you have a bouncing baby boy or girl.

“Go to a nursing home and in most cases people don’t get out of there alive,” he said. “Nursing homes are up against a stacked deck.”

Economics and the standard of care. In North Carolina, the negligence issue is whether the defendant’s level of care met the standard for similar nursing homes in similar communities.

“The way some cases are tried by the plaintiff’s bar is to ask for an elevated standard of care and complain about the quality of nursing home care in general,” Hurley said. “That has real implications for society. How much care do you want to pay for? The standard that some plaintiffs want to hold defendants to could only be met by having 24-hour nursing care. You often have Medicaid patients in nursing homes which limits the amount of money paid, so you can’t have nurses in every corner.

“I think nursing homes do excellent jobs, notwithstanding the reimbursement they get,” Hurley said. “But the reality is, at the end of the day under those constraints, you can only hire so many people.”

Hurley’s approach to that issue?

“I told jurors if people felt the standards weren’t high enough, then they should do the honest thing and go down to the legislature and change it,” he said. “What I didn’t say to them was ‘and raise taxes to do it.'”

Family sense of guilt. “There is also a kind of innate fear about the idea of going to a nursing home,” Hurley said. “When people come to that decision for a family member, they have intense guilt about whether they’ve abandoned their loved ones. There’s a lot of sadness associated with it so you have an entire jury panel fighting that angst in their own lives.

“The way people deal with it is to demand the very best care,” Hurley said. “They think if I can’t take care of mom or dad, I can make sure they get the very best nursing home care. It sort of assuages their feelings of guilt that they’re not providing the care. Nursing homes often get the brunt of that public animus.”

Misunderstanding resident’s autonomy. “There’s also at the end stage of life a role reversal between children and parents, with children assuming the parental role,” Hurley said. “If they’ve been caring for the parent at home, they’re used to making the parent do what they want them to do. There’s often a lack of understanding that nursing homes can’t make people do anything.

“Nursing homes are kind of between a rock and a hard place,” Hurley said. “They can’t force residents to accept treatments. Nurses have told me they view a resident’s room at a skilled nursing facility as someone’s home. Most people don’t realize that a nursing home is a different environment.”

Hurley’s bottom line advice for defense lawyers in nursing home lawsuits: “Get those feelings out in front of the jury,” he said. “You have to talk about the elephant in the room — which is that everybody hates nursing homes. A lot of jurors were stricken for cause in this case because of that. I talked to the ones that remained about how unfair it is to be judged based on what people have heard about you. That’s really nothing more than prejudice and you have to get that out of jurors’ minds.”

Post-Trial Motions

Raleigh attorney Stephen Gugenheim, a lawyer for the plaintiff in Alston, said motions for a new trial and to set aside the verdict had been made and were still pending.

Gugenheim questioned Hurley’s numbers on the rarity of favorable jury verdicts for nursing homes.

However, he agreed nursing homes have image problems with the public, but not for the reasons cited by Hurley.

“I would comment that juries certainly do have a poor perception of nursing homes — probably because the majority of the time, they’re right,” said Gugenheim.

—Questions or comments may be directed to eberry@nc.lawyersweekly.com.

© 2004 Lawyers Weekly Inc., All Rights Reserved.

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